Australian Mineral Law
The Crown owns every mineral beneath Australian soil. It always has. This page explains who the Crown is, what that ownership means in practice, and why the COGS model uses corporations law as the practical path through that legal architecture.
This page provides general legal information only. It is not legal advice. Laws were current as at May 2026. If you need advice about a specific matter, consult a qualified Australian lawyer.
Who is the Crown?
Australian law says the Crown owns all minerals beneath your feet. But who is the Crown? Is it the people of Australia? This section explains the legal truth, from its origins in 1568 to what it means today.
Where the Crown comes from
The Crown is not a person. It is not a government department. The Crown is a legal idea: a permanent, abstract entity that represents the authority of the state. It is older than democracy by many centuries.
In English law, the Crown developed during the medieval period to separate the person of the king from the institution of kingship. The king could die; the Crown continued. Over the centuries, the Crown built up a set of rights and powers belonging to it alone. These are called the royal prerogative. They include the power to own all minerals and resources beneath the land.
The Case of Mines 1568
The Crown's ownership of minerals beneath the ground was set down in English law in 1568.
Case of Mines (1568) 1 Plowd 310; 75 ER 472
The English Court of Exchequer held that all mines of gold and silver belong to the Crown by royal prerogative, regardless of who owns the surface land above them. This is the foundational case for Crown mineral ownership. It was decided over 450 years ago and has never been overturned. Australian colonial legislatures inherited this principle and extended it to cover all minerals, not just gold and silver.
When British colonists arrived in Australia, they brought English common law with them, including the royal prerogative over minerals. When the Australian colonies federated in 1901, every state and territory had already codified Crown mineral ownership in statute law. The ancient royal prerogative became modern legislation, but its origin was never changed.
The Crown in Australia
In Australia today, the Crown means the King of Australia acting through his appointed representatives. The King is currently King Charles III. He holds the same throne as the King of the United Kingdom, but in a separate legal capacity as King of Australia.
This was confirmed by the High Court in Sue v Hill (1999) 199 CLR 462, which held that Australia and the United Kingdom are now separate foreign countries in a legal sense. The King does not govern Australia in person. He is represented at the federal level by the Governor-General and at each state level by the six State Governors.
Commonwealth of Australia Constitution Act 1901 (Imp), ss. 2 and 61
Section 61 vests the executive power of the Commonwealth in the King, exercisable by the Governor-General as the King's representative. Section 2 provides that the Governor-General is appointed by the King. The Constitution was passed by the Parliament of the United Kingdom. It was not drafted or ratified by the Australian people as a democratic founding instrument.
The legal basis of Crown ownership of Australian minerals traces back through the Constitution Act 1901, through the colonial statutes, through English common law, and ultimately to an English court decision made in 1568. The Australian people were not a party to any of that history.
There is more than one Crown
When lawyers say "the Crown" in Australia, they do not always mean the same thing. There are seven legally separate Crown entities: one for the Commonwealth and one for each state. These can sue each other in court and have done so.
| Crown | Administering government | Owns which minerals |
|---|---|---|
| Commonwealth | Federal government | Offshore minerals beyond 3nm; uranium anywhere in Australia |
| New South Wales | NSW government | All onshore minerals and petroleum in NSW; coastal waters within 3nm |
| Victoria | Vic government | All onshore minerals in Victoria |
| Queensland | Qld government | All onshore minerals in Queensland |
| Western Australia | WA government | All onshore minerals in Western Australia |
| South Australia | SA government | All onshore minerals in South Australia |
| Tasmania | Tas government | All onshore minerals in Tasmania |
Source: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (Engineers Case) — the High Court established that the Commonwealth and the states are separate legal entities under one Constitution, not arms of a single unified Crown.
Does the Crown answer to the people?
The simple answer most Australians expect is yes. The full answer is: in theory yes, but the chain between the people and actual Crown power is long, indirect, and has significant gaps.
The theory is that people vote, Parliament forms, Cabinet manages Crown resources, and the Governor-General or Governor acts on advice. In practice, five things break this chain.
The Governor-General is appointed, not elected
The Governor-General holds the actual executive power of the Crown. They are appointed by the King on the Prime Minister's advice. They are not accountable to the people through any electoral process, and the full scope of their reserve powers is not defined in the written Constitution.
The people did not create the Constitution
The document that vests executive power in the Crown was passed by the British Parliament in 1901. The Australian people voted on whether to federate, but they did not draft or ratify the Constitution as a democratic founding document. There is no provision stating that sovereignty vests in the people over Crown assets in any legally enforceable way.
Changing the Constitution is hard
Under section 128, an amendment requires an absolute majority in both Houses and then approval by a majority of voters nationally and a majority in at least four of the six states. This double majority has been met only eight times from 44 attempts in 125 years.
Mineral policy is not directly voted on
No state election has ever asked voters directly: "Should communities above a mineral resource receive a share of what is extracted?" Governments make these decisions administratively, without a direct mandate on the specific question of resource distribution.
Crown mineral ownership is protected from ordinary legislation
Crown ownership of minerals is not something a simple Act of Parliament can transfer to communities without significant constitutional challenge. The prerogative right and the doctrine of radical title sit at the foundation of the legal system.
What Mabo changed and what it did not
The Mabo decision is one of the most significant events in Australian legal history. It is important to understand exactly what it changed and what it left untouched.
Mabo v Queensland (No 2) (1992) 175 CLR 1
The High Court held 6 to 1 that the doctrine of terra nullius (the legal fiction that Australia was legally empty when the British arrived) was wrong and should not be part of Australian law. The Court held that Native Title to land survives colonisation where it has not been extinguished by a valid act of the Crown. This was a profound and historic recognition of First Nations peoples' connection to Country.
Mabo did not overturn Crown ownership of minerals. The majority judgments explicitly preserved the Crown's radical title over all land in Australia. Native Title, where it exists, is a right to use and occupy the surface of the land. It is not a right to the minerals, oil, or gas beneath it.
The Crown's prerogative over subsurface resources was left completely intact by the Mabo decision. Thirty years after Mabo, the minerals under Bundjalung Nation Country in northern New South Wales still belong to the King of New South Wales.
The 1975 dismissal: proof Crown power is real
Some Australians treat the Crown as a ceremonial relic with no real power. The events of 11 November 1975 show that is wrong.
On that date, Governor-General Sir John Kerr used the reserve powers of the Crown to dismiss the elected Prime Minister, Gough Whitlam, and his government. The Whitlam government held a majority in the House of Representatives. It had been elected by the Australian people. The Governor-General dismissed it without a vote of the people and without a vote of the House.
No Australian court has ruled the dismissal unconstitutional. The reserve powers used that day remain available to any future Governor-General. The Crown in Australia is a live legal institution, not a historical decoration.
The democratic gap
The minerals beneath Australian soil are owned by the Crown. The Crown in each state is a separate legal entity from the elected government, though elected governments exercise its powers. The Crown's mineral ownership traces back to 1568 and was never granted to the Australian people through any democratic founding document.
There is no Australian law that entitles communities living above a mineral resource to a financial share of what is extracted from beneath their feet.
Royalties flow to government treasuries, not to communities. Native Title gives procedural consultation rights, not mineral ownership. Landowners above the resource have no right to what lies beneath them.
This gap is structural. It is the result of 450 years of legal history that began with English royal prerogative. It has survived federation in 1901, the Australia Acts in 1986, the Mabo decision in 1992, and the republican referendum in 1999.
What this looks like in practice
Gold
Australia's overall gold-mining industry is 55% Australian-controlled. But of the top five gold producers (Boddington, Tropicana, Cadia, Super Pit, and Tanami), only 24% is Australian-controlled. Four of the top five are majority foreign-owned. Source: Dr Sandra Close, Surbiton Associates, Mining Weekly, September 2025.
Gas
56% of LNG exported from Australia is royalty-free. Between 2021/22 and 2024/25, Australia exported $170 billion of royalty-free LNG. Gas companies made $112 billion in windfall profits since the Ukraine war began. Petroleum Resource Rent Tax revenue in 2023 was lower than in 2001. As of 2023, no LNG export project had ever paid the PRRT. Source: The Australia Institute, Submission to Senate Inquiry, April 2026.
Both industries operate under licences granted by the Crown over minerals owned by the Crown. The Australian public holds no legal share in either resource.
Who Owns the Minerals?
The laws that govern minerals, oil, and gas beneath Australian soil. Every Act cited. NSW-focused because that is the jurisdiction relevant to Bundjalung Nation Country and the Foundation's operational holdings.
The core rule: Crown ownership
In Australia, the government owns all minerals, oil, and gas beneath the ground. This applies across every state and territory. It does not matter who owns the land above. A farmer, a company, a First Nations community, or a local council can own the surface of the land and still have no right to what lies beneath it.
Mining Act 1992 (NSW), Section 9: All minerals in, on or under any land in New South Wales are the property of the Crown.
This applies to all land in NSW without exception: privately owned land, publicly owned land, Aboriginal land, National Parks, and any other tenure. Every other state and territory has an equivalent provision. The surface tenure makes no difference to the Crown's ownership of what lies beneath.
State and Territory laws
New South Wales — Mining Act 1992 (NSW)
Section 9 vests all minerals in the Crown. Governs exploration licences, assessment leases, and mining leases. Directly relevant to mineral tenements across Bundjalung Nation Country. Also: Petroleum (Onshore) Act 1991 (NSW) vests all onshore petroleum in the Crown; Mining Regulation 2016 (NSW) sets royalty rates.
Queensland — Mineral Resources Act 1989 (Qld)
Queensland's primary mining statute. Vests all minerals in the Crown. Also: Petroleum and Gas (Production and Safety) Act 2004 (Qld) governs onshore petroleum and coal seam gas.
Western Australia — Mining Act 1978 (WA)
Western Australia's principal mining statute. WA produces the majority of Australia's mineral export revenue under this Act. Also: Petroleum and Geothermal Energy Resources Act 1967 (WA) vests petroleum in the Crown.
South Australia — Mining Act 1971 (SA)
South Australia's principal mining legislation. Vests minerals in the Crown. Also: Petroleum and Geothermal Energy Act 2000 (SA).
Victoria — Mineral Resources (Sustainable Development) Act 1990 (Vic)
Victoria's primary mining legislation. Vests minerals in the Crown. Includes environmental performance bond provisions.
Tasmania — Mineral Resources Act 1995 (Tas)
Tasmania's principal mining statute. Vests all minerals in the Crown.
Northern Territory — Mining Act 1980 (NT)
The NT's primary mining legislation. The NT also has specific provisions relating to Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which imposes additional requirements for mining on Aboriginal land.
Commonwealth laws
The federal government owns and regulates resources in two specific situations: offshore beyond 3 nautical miles from the coast, and uranium anywhere in Australia.
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth)
The Commonwealth's primary legislation for offshore petroleum. Governs all petroleum resources beyond 3 nautical miles from the coast, extending to the outer edge of the continental shelf. Also governs CO2 injection and storage in offshore geological formations.
Atomic Energy Act 1953 (Cth)
Vests uranium and thorium in the Commonwealth. Mining uranium requires Commonwealth approval in addition to any state licence, regardless of which state or territory it is located in.
Seas and Submerged Lands Act 1973 (Cth)
Establishes Australia's sovereign rights over its territorial sea, continental shelf, and exclusive economic zone. The foundational legislation giving Australia legal title to offshore seabed resources under international law.
Native Title and Land Rights
Native Title recognises the connection that First Nations peoples have to their Country. But it does not give First Nations communities ownership of the minerals, oil, or gas beneath that Country. That remains with the Crown.
Native Title Act 1993 (Cth)
Recognises and protects the rights and interests of Aboriginal and Torres Strait Islander peoples in land and waters. Does not grant mineral ownership. Provides a Right to Negotiate process before certain mining leases can be granted on land where Native Title has not been extinguished. The Right to Negotiate gives Traditional Owners the right to be consulted and to negotiate conditions, but not to veto. Consultation is not ownership.
Aboriginal Land Rights Act 1983 (NSW)
Establishes Aboriginal Land Councils in NSW, including Jubullum Local Aboriginal Land Council (JLALC) on Bundjalung Nation Country. Allows for the vesting of surface land in Land Councils. Does not confer subsurface mineral rights. Land Councils own the surface; the Crown still owns what is beneath it.
Because Native Title does not give mineral ownership, the only way for a First Nations community, or any community, to hold a genuine financial interest in resource extraction is to hold equity inside the licensed company. That is a legal right that exists independently of Native Title.
Licences: who can explore and mine
No company or individual can explore for or extract minerals without a licence granted by the relevant Crown authority. The Crown does not sell the minerals. It sells the right to access them. The minerals remain Crown property until they are physically extracted under a valid lease.
| Title type | What it allows | NSW legislation |
|---|---|---|
| Exploration Licence (EL) | Right to explore for minerals. No extraction permitted. | Mining Act 1992 (NSW) s.13 |
| Assessment Lease (AL) | Detailed assessment of a mineral resource after exploration. | Mining Act 1992 (NSW) s.44 |
| Mining Lease (ML) | Right to mine and extract. Triggers full consultation requirements. | Mining Act 1992 (NSW) s.63 |
| Petroleum Exploration Licence (PEL) | Right to explore for petroleum. No production permitted. | Petroleum (Onshore) Act 1991 (NSW) s.9 |
| Petroleum Production Lease (PPL) | Right to extract petroleum. | Petroleum (Onshore) Act 1991 (NSW) s.28 |
| Offshore Production Licence | Right to extract petroleum in Commonwealth offshore waters. | OPGGSA 2006 (Cth) |
Any company holding Exploration Licences on Bundjalung Nation Country holds the right to explore, nothing more. It does not hold the right to extract. The minerals remain the property of the NSW Crown, regardless of who holds the licence.
Royalties: who gets paid
When a company extracts minerals or petroleum under a valid mining lease, it pays a royalty to the Crown. A royalty is a percentage of the value of the material extracted. It is not paid to the landowner. It is not paid to the community living above the resource. It is not paid to Traditional Owners. It is paid to the state or territory government.
Royalties go to the government, not to communities. Whether those royalties reach the communities most affected by mining is decided by politicians. It is not guaranteed by law. Communities have no legal entitlement to a share of the value extracted from beneath their own Country.
Source: Mining Regulation 2016 (NSW); Petroleum (Onshore) Act 1991 (NSW) Part 5; Petroleum Resource Rent Tax Assessment Act 1987 (Cth).
Summary: who owns what
| Resource | Who owns it | Governing law |
|---|---|---|
| Onshore minerals (NSW) | NSW Crown | Mining Act 1992 (NSW) |
| Onshore petroleum (NSW) | NSW Crown | Petroleum (Onshore) Act 1991 (NSW) |
| Onshore minerals (Qld) | Qld Crown | Mineral Resources Act 1989 (Qld) |
| Onshore minerals (WA) | WA Crown | Mining Act 1978 (WA) |
| Offshore (beyond 3nm) | Commonwealth Crown | OPGGSA 2006 (Cth) |
| Uranium (all locations) | Crown + Commonwealth oversight | Atomic Energy Act 1953 (Cth) |
| Native Title land (surface) | Traditional Owners | Native Title Act 1993 (Cth) |
| Subsurface beneath Native Title land | The Crown (not Traditional Owners) | Mabo (1992); Mining Act 1992 (NSW) s.9 |
Why COGS Uses Corporations Law Instead
COGS of Australia Foundation was built with a clear understanding of the legal position described on this page. Waiting for constitutional reform to transfer mineral ownership to communities is not a practical strategy. That reform has not occurred in 125 years of Australian federation.
Instead, COGS uses a legal mechanism that already exists and that the Crown's mineral ownership does not affect: the shareholder rights created by the Corporations Act 2001 (Cth).
How it works
The Crown owns the minerals. But the Crown grants exploration licences and mining leases to companies. Those companies are governed by the Corporations Act. Every CHESS-registered shareholder has direct legal rights inside those companies.
COGS of Australia Foundation puts community members in the room where decisions about those resources are made. The Trustee, on behalf of the joint venture, holds CHESS-registered shares as trust property in Sub-Trust A. Members exercise day-to-day control through the proprietary cryptographic governance system: members direct how those shares are voted at portfolio company general meetings (through the Aggregate Unitholder Direction mechanism, a vote of all members ahead of each meeting that tells the Trustee how to cast the Foundation's shareholder vote); members appoint and remove the Trustee; the Trustee cannot act against valid member governance decisions. Every personal member has one equal national governance vote, regardless of wealth or holding size.
Corporations Act 2001 (Cth): Shareholder rights
Every CHESS-registered shareholder, regardless of the size of their holding, has the right to: attend and speak at general meetings; vote on resolutions, including resolutions about how the company manages its tenements; receive all financial disclosures made to the ASX; question the board of directors; and receive dividends if profits are distributed. These rights apply equally to a community member holding one share and an institutional investor holding millions. In the COGS structure, the Trustee holds CHESS-registered shares as trust property. Members exercise these rights collectively through the governance system, directing the Trustee how to vote at each portfolio company general meeting. The legal voice belongs to the Trustee on the register; the direction belongs to the members.
Those rights do not depend on Native Title. They do not depend on constitutional reform. They are legal rights under the Corporations Act 2001 (Cth), held by the Trustee on the register, and exercised under member direction through the Foundation's governance system.
COGS holds CHESS-registered shares in Legacy Minerals Holdings (ASX: LGM), a gold and mineral exploration company in northern NSW, and Santos (ASX: STO), an Australian gas producer. The Foundation is working toward future holdings in Woodside Energy (ASX: WDS), Origin Energy (ASX: ORG), and Beach Energy (ASX: BPT). LGM and STO are operational holdings. WDS, ORG, and BPT are future holdings, subject to First Nations Advisory Council review before any acquisition proceeds. The minerals beneath LGM's tenements and the gas resources within STO's portfolio carry real, measurable value before extraction. The Foundation holds these shares as a stewardship position. The legal voice in the boardroom and the in-ground value beneath the tenements are both part of what the joint venture stewards on behalf of members.
Full Legal Reference List
Cases
Case of Mines (1568) 1 Plowd 310; 75 ER 472
Crown ownership of gold and silver mines by royal prerogative. Foundational case for all Australian mineral law. Never overturned.
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
Commonwealth and states are separate legal entities. Foundation of Australian federal constitutional law.
Mabo v Queensland (No 2) (1992) 175 CLR 1
Overturned terra nullius for surface land. Recognised Native Title. Explicitly preserved Crown radical title and Crown mineral ownership.
Sue v Hill (1999) 199 CLR 462
Australia and the United Kingdom are separate foreign countries in law. The King of Australia acts in a distinct legal capacity from the King of the United Kingdom.
Wik Peoples v Queensland (1996) 187 CLR 1
Native Title can coexist with a pastoral lease. Pastoral lease rights prevail where inconsistency exists. Crown mineral ownership unaffected.
New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337
Commonwealth sovereignty over the territorial sea. States do not own the offshore seabed or its resources.
Commonwealth Acts
Commonwealth of Australia Constitution Act 1901 (Imp)
Australia's founding constitutional document, passed by the British Parliament. Vests executive power in the Crown (s.61). Establishes the Governor-General (s.2). Sets the amendment process (s.128).
Corporations Act 2001 (Cth)
Primary law governing Australian companies. Establishes shareholder rights including the right to attend general meetings, vote on resolutions, and receive financial disclosures.
Native Title Act 1993 (Cth)
Recognises First Nations rights in land and waters. Provides Right to Negotiate before mining leases are granted. Does not confer mineral ownership on Native Title holders.
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth)
Commonwealth regulation of petroleum beyond 3nm from the coast.
Petroleum Resource Rent Tax Assessment Act 1987 (Cth)
Profit-based tax on petroleum projects in Commonwealth waters. Has collected far less than projected due to accumulated industry deductions.
Atomic Energy Act 1953 (Cth)
Vests uranium and thorium in the Commonwealth. One of Australia's oldest resources statutes.
New South Wales Acts
Mining Act 1992 (NSW)
Principal NSW mining statute. Section 9 vests all minerals in the Crown. Governs all solid mineral exploration and extraction licences in NSW.
Petroleum (Onshore) Act 1991 (NSW)
Governs onshore petroleum in NSW. Vests all petroleum in the Crown.
Aboriginal Land Rights Act 1983 (NSW)
Establishes Aboriginal Land Councils in NSW including JLALC on Bundjalung Nation Country. Vests surface land only; subsurface minerals remain Crown property.
This page provides general legal information only. It is not legal advice. Laws were current as at May 2026. If you need advice about a specific mining, Native Title, or constitutional matter, consult a qualified Australian lawyer with experience in resources law.
Read next: The Fifty Years: the political record. Or return to Why.